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1974 Supreme(Pat) 196
PATNA HIGH COURT
B.D.Singh and S.Ali Ahmad JJ.
Vidya Nand Sinha
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1683 of 1973 ;
Decided On : OCTOBER 3, 1974
Overseers deputed to work in another department are entitled to the enhanced scale of pay fixed by their parent department, as they do not cease to be the servants of the parent department on deputation.
Headnote:
FOREIGN SERVICE - PAY SCALE - DEPUTATION - SERVICE CODE - ELECTRICITY BOARD - ARTICLE 226 AND 227 - WRIT - FUNDAMENTAL RIGHT - DISCRIMINATION - ARTICLE 14 AND 16 - BIHAR SERVICE CODE, 1952 - ELECTRICITY (SUPPLY) ACT, 1948 - SECTION 78-A, 79, 282, 283, 284 - RULE 267 (A), 268, 270, 275, 282, 283, 284 - RESOLUTION DATED 12TH DECEMBER, 1963 - ANNEXURE 8 - STANDING ORDER NO. A/A1-1004/58-EB-2 OF 1958-59 - RESOLUTION NO. 239 OF 1960-61 - NOTIFICATION DATED 29TH MARCH, 1973 - ANNEXURE 1 - NOTIFICATION DATED 18TH APRIL, 1973 - ANNEXURE 2 - RULE 169 (B), 17, 267 (A) - PROVISO - RULE 28 - NOTE 2 - RULE 282, 284 - SECTION 3 - ARTICLE 226, 227 - CONSTITUTION OF INDIA - ARTICLE 14, 16 - CONSTITUTION OF INDIA - STATE OF MADHYA PRADESH V/S. BHAILAL BHAI, AIR 1964 SC 1006 - M/S. BABURAM PRAKASH CHANDRA MAHESHWARI V/S. ANTARIM ZILA PARISHAD NOW ZILA PARISHAD, MUZAFFARPUR, AIR 1969 SC 556 - HIRDAY NARAIN V/S. INCOME-TAX OFFICER, BAREILLY, (AIR 1971 SC 33) - UNION OF INDIA V/S. K.P. JOSEPH, AIR 1973 SC 303 - DALEL SINGH V/S. HONORARY SECRETARY, CO-OPERATIVE UNION LTD., U. P., LUCKNOW, AIR 1956 ALL 43 - SUDARSHAN KUMAR KALRA V/S. UNION OF INDIA, AIR 1974 DELHI 119 - GENERAL MANAGER, EASTERN RAILWAY V/S. KSHIRODE CHANDRA KHANSMOBIS, AIR 1966 CAL 601 - STATE OF BIHAR V/S. VIDYA NAND SINHA, 1975 PLJR 126.
Fact of the Case:
Four petitioners, overseers serving under respondent No. 3, Bihar State Electricity Board, were deputed to work in the department of respondent No. 1, Bihar State Electricity Board. They sought a writ of mandamus directing the respondents to allow them the scale of pay of Rs. 425 to Rs. 710.00, which was the sanctioned scale of the Bihar State Electricity Board, with effect from 1st January, 1971.
Finding of the Court:
The court held that the petitioners were entitled to the enhanced scale of pay as fixed by respondent No. 3 from 1st January, 1971, as they had acquired a fundamental right to receive their salary at the enhanced rate by virtue of the resolutions passed by respondent No. 3 and the provisions contained under various rules of the Bihar Service Code, 1952.
Issues: 1. Whether the petitioners were entitled to the enhanced scale of pay as fixed by respondent No. 3 from 1st January, 1971? 2. Whether the petitioners had acquired a fundamental right to receive their salary at the enhanced rate?
Ratio Decidendi: 1. The court held that the petitioners did not cease to be the servants of respondent No. 3 on their deputation, and therefore, they were entitled to the enhanced scale of pay as fixed by respondent No. 3. 2. The court held that the petitioners had acquired a fundamental right to receive their salary at the enhanced rate by virtue of the resolutions passed by respondent No. 3 and the provisions contained under various rules of the Bihar Service Code, 1952.
Final Decision: The court allowed the application of the petitioners and directed respondents Nos. 1 and 2 to pay salary to the petitioners at the enhanced scale as shown in the resolution contained under Annexure 2 to the petition from 1st January, 1971.
1. The four petitioners obtained rule of this Court on the basis of their application under Articles 226 and 227 of the Constitution of India. In the application, they have prayed for issuance of writ on respondents 1 to 4 to show cause why an appropriate writ, order or direction should not be issued directing the respondents to allow the petitioners with effect from 1st January, 1971, the scale of pay of Rs. 425 to Rs. 710.00 which was the sanctioned scale of the Bihar State Electricity Board, respondent No. 3.
2. In order to appreciate the points involved in this application, it would be necessary to state briefly the facts. All the four petitioners were overseers serving under respondent No. 3. At present, they are serving with respondent No. 1 as deputed by respondent No. 3. The scales of pay prescribed by respondents 1 and 3 were identical upto 31-12-1970. Respondent No. 3 revised the scale of the overseers among others by Notification dated 29th March, 1973, contained under Annexure 1 from Rs. 200 to Rs. 660/-. Further, enhancement of the scale was made by Notification dated 18th April, 1973 - Vide Annexure 2, according to which the scale of pay of the overseers was fixed at Rs. 425/- to 710/-. There is a further Note in the said Notification which reads as:
"The minimum starting pay of those overseers who are in employment on the date of issue of the order will be fixed at Rs. 455/-,"
while the sanctioned scale of pay for the overseers in the department of respondent No. 1 is only Rs. 335/- to 535/-. According to the petitioners, since they are on deputation, as deputed by respondent No. 3, they are on foreign service with respondent No. 1 according to Rule 17 of the Bihar Service Code, 1952 (hereinafter to be referred to as the Code). Therefore, according to them, they are entitled to the scale as fixed by respondent No. 3 from 1st January, 1971.
3. Vidya Nand Sinha, petitioner No. 1, was appointed by respondent No. 3 as a temporary overseer on 18th January, 1962 and was confirmed as a permanent overseer with effect from 1st August, 1967. He was deputed by respondent No. 3 to work in the department of respondent No. 1 from 23rd July, 1966; whereas Thakur Chittaranjan Prasad Singh, petitioner No. 2, was appointed as a temporary overseer by respondent No. 3 on 19th January, 1962 and was confirmed by respondent No. 3 with effect from 1st August, 1967. He was deputed by respondent No. 3 to work in the department of respondent No. 1 on 18th January, 1968. Ramashray Prasad Singh, petitioner no. 3 was also appointed as a temporary overseer by respondent no. 3 on 2nd March, 1964 and he was deputed in the department of respondent No. 1 on 21st August, 1967, where he is still holding a temporary post. Lastly Kamla Prasad Sinha, petitioner no. 4, was appointed on 9th May, 1964 by respondent No. 3 as a temporary overseer and he was sent on deputation to the department of respondent No. 1 with effect from 21st August, 1967, where he is also, like petitioner No. 3, holding still a temporary post.
4. Learned counsel for the petitioners submitted that in deputation, the petitioners had no option. In this connection, he drew our attention to the proviso to Rule 267 (a) of the Code which reads as:
"267 (a) - No Government servant may be transferred to foreign service without his consent. Provided that this sub-rule shall not apply to the transfer of a Government servant to the service of a body incorporated or not which is wholly or substantively owned or controlled by the State Government, or by the Central Government, when the body operates, or would operate in Bihar even though its head-quarters may be outside."
Serial No. 4 of the Resolution dated 12th December, 1963, contained under Annexure 8 to the supplementary affidavit filed by the petitioners reads as follows:-
"In continuation of Boards Standing Order No. A/A1-1004/58-EB-2 of 1958-59 the Bihar State Electricity Board has decided (in its Resolution No. 239 of 1960-61)
